Simpson Accusers Try to Save Witness

By DAVID MARGOLICK

Published: April 15, 1995

LOS ANGELES, April 14—
Prosecutors today continued their attempted rehabilitation of Dennis Fung, the police evidence collector, where O. J. Simpson's lawyers left off with him: Mr. Fung's handling of a vial of Mr. Simpson's blood.

Prosecutors tried to prove that Mr. Fung got the vial when he said he did, on June 13, and not on the next day as Mr. Simpson's lawyers contend. The distinction is important because defense lawyers have maintained that corrupt police officers spent the intervening time spreading Mr. Simpson's blood over many of the items on which the case against him is built.

One prosecutor, Deputy District Attorney Hank Goldberg, projected a photograph of the gray envelope containing the Simpson blood sample that Detective Philip Vannatter has said he handed Mr. Fung. Then a prosecution technician electronically circled what Mr. Fung had written on the envelope: "Received from Det Vannatter #14877 6-13-94 @ 1722." That time, 5:22 P.M., matched the time Mr. Fung said he got the envelope.

Mr. Goldberg also elicited from Mr. Fung innocuous explanations for episodes and exhibits that Mr. Simpson's lawyers had depicted as steps in an intricate police conspiracy to frame the defendant, who is accused of killing his former wife, Nicole Brown Simpson, and her friend Ronald L. Goldman.

The prosecutor suggested that had Mr. Fung been a co-conspirator, he would have destroyed certain duplicative documents or rough drafts rather than saving them, and would not have left conspicuous erasures on them. Mr. Goldberg also got Mr. Fung to concede to mistakes in his testimony, which Mr. Fung said stemmed from inattention to unimportant details rather than anything nefarious.

Mr. Goldberg also tried to defuse one of Mr. Fung's most damaging admissions: that it was his subordinate, Andrea Mazzola, who had collected most of the blood swatches at the crime scene and at Mr. Simpson's home and not he, as he had testified in the preliminary hearing.

Mr. Fung explained that to him, "collect" meant locating, identifying and documenting evidence as much as actually picking it up.

"And under your state of mind, when you testified at the grand jury, who 'collected' the evidence in the sense that you have defined it?" Mr. Goldberg asked.

"It was me," Mr. Fung replied.

It was a day when everyone in Judge Lance A. Ito's courtroom seemed to breathe a collective sigh of exhaustion after one of the most grueling cross-examinations of the trial. That sense was heightened when lawyers spent much of the morning wrangling not over whether Mr. Simpson killed two people but over the significance of staple holes on a blank police form.

On Thursday, Barry Scheck, the defense lawyer who cross-examined Mr. Fung, observed ominously that one page of an evidence checklist Mr. Fung had prepared was a photocopy -- with nothing written on it -- rather than an original. He accused Mr. Fung of switching pages because the original might have destroyed his claim to have received the blood when he said he had.

Moments after Mr. Scheck concluded, prosecutors produced the original page, also blank and distinguishable only by staple marks.

Today, Mr. Scheck complained that he had been "sandbagged" and that under court rules prosecutors should have handed him the original long ago, or at least immediately after they found it.

"They all sat here and discussed it," Mr. Scheck said. "And they thought about it and they thought: 'Wouldn't this be terrific. Let's rehabilitate Mr. Fung.' "

"It will look like this is an innocent mistake," Mr. Scheck continued, and by extension "all the other contradictions" in Mr. Fung's testimony would, too.

Mr. Goldberg countered that prosecutors had not been obliged to hand over a blank sheet, but would have done so had the defense asked. Instead, he said, Mr. Simpson's lawyers were intent on staging "a Perry Mason moment," and their stagecraft backfired.

"As an advocate, quite frankly, I would not have thought of predicating a conspiracy theory based upon the existence or nonexistence of staple holes on page four," said Mr. Goldberg, who spoke with more fire today than he had throughout what had been for prosecutors a demoralizing week. "The only harm here is that their tactical decision didn't work. And the remedy is nothing."

Judge Ito agreed with Mr. Scheck, to a point.

"Well," he asked Mr. Goldberg, "don't you think the defense has just sort of been embarrassed that it set up a scenario where they accused Mr. Fung of having destroyed an important document that might document certain important dates and times and left that impression with the jury, which is totally empty if this is the real page four?"

Mr. Goldberg replied, "I don't know whether they're embarrassed or not because they've come up with so many other things that they've tried to use to shoot down our case that have been very easily disproved."

The judge prepared to inform the jury about the misconduct but stopped when, in the latest plea for equal treatment, Deputy District Attorney Marcia Clark demanded that Mr. Simpson's lawyers be punished for failing to hand over videotapes a few days ago.

Despite that exchange, relations between Ms. Clark and Mr. Cochran have remained reasonably cordial, while the rivalry between Mr. Cochran and Deputy District Attorney Christopher A. Darden has escalated. At a sidebar conference on Thursday, Mr. Cochran admonished Mr. Darden to "be a lawyer," and added, "Stop acting like a child."

"You're the child, Mr. Cochran," Mr. Darden shot back.

So exercised was Mr. Cochran by Mr. Darden's remarks that Judge Ito had to tell the defense lawyer to contain himself. "Don't spit at me, Mr. Cochran," the judge said.

Outside court today, a small furor erupted over a comment that another of Mr. Simpson's lawyers, Robert L. Shapiro, purportedly made yesterday to two reporters covering the case, Dominick Dunne of Vanity Fair magazine and Joe McGinnis, a freelance author writing a book on the case.

The two men said Mr. Shapiro handed them fortune cookies on Thursday that came, he told them, from a restaurant called "Hang Fung."

Coming quickly on the heels of Senator Alfonse M. D'Amato's imitation of Judge Ito on a New York radio show and allegations of racial tension on the jury, Mr. Shapiro's comment touched a nerve. Kathy Imahara, a lawyer with the Asian Pacific American Legal Center in Los Angeles, called it "really uncalled for and inappropriate."

Mr. Shapiro said he had been misquoted.

Photo: Each side in the O.J. Simpson case exchanged accusations yesterday regarding the turning over of evidence. Barry Scheck, of the defense, gestured toward prosecutors as he accused them of deliberate misconduct. (Pool photo by Reed Saxon)